Patel v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1482
•9 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1482
File number(s): SYG 269 of 2024 Judgment of: JUDGE SKAROS Date of judgment: 9 September 2025 Catchwords: MIGRATION – Whether the Tribunal erred in finding that the applicant was not a genuine temporary entrant under cl 500.212 – where the applicant contends the Tribunal failed to consider evidence – no jurisdictional error by the Tribunal – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 359(2)
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Cases cited: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 26 August 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms A. Wilford, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 269 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAVAN DILIPKUMAR PATEL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
9 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The Application filed on 21 February 2024 is dismissed.
2.The Applicant pay the First Respondent’s costs in the fixed amount of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
INTRODUCTION
By application filed on 21 February 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 22 January 2024. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant’s Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant, a citizen of India, first arrived in Australia on 18 September 2018 on a student visa, which he held for the purpose of completing a Master of Professional Accounting at Charles Sturt University. The Confirmation of Enrolment (CoE) was cancelled on 11 November 2019 due to ‘unsatisfactory course progress’. The applicant was also issued a CoE for a Master of Business Administration that was cancelled on 20 April 2020 for ‘cessation of studies by the student’.
The applicant applied for the visa, the subject of these proceedings, on 25 February 2021 to complete a Graduate Diploma of Management and a General Intensive English Course at the Education Centre of Australia with a scheduled completion date of 9 April 2023.
On 17 May 2021, a delegate invited the applicant to comment on adverse information being that his Provider Registration and International Student Management System (PRISMS) records indicated that both his Master enrolments had been cancelled. The Department further put to him that departmental records showed he had not maintained enrolment between 21 April 2020 and 21 February 2021 which was a breach of visa condition 8202: CB 41. The delegate noted that, by reliance on this information, he held significant concerns the applicant was using the student visa program to extend his stay in Australia and that the applicant was not a genuine temporary entrant for the purposes of cl 500.212. The delegate invited the applicant to comment on this information and to provide further evidence in support of his application. In his response to the delegate, the applicant provided various explanations for his non-enrolment, including that his mother was not well, the impact of the pandemic, he was having panic attacks, and his father had not sent him fees because of the pandemic. He provided documents pertaining to the health of his parents.
On 28 June 2022, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
On 30 June 2022, the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant appeared before the Tribunal on 22 January 2024 to give evidence and present arguments, with the assistance of an interpreter in the Gujarati and English languages.
On 23 January 2024, the Tribunal made a written decision affirming the delegate’s decision to refuse the applicant the visa.
THE TRIBUNAL’S DECISION
The dispositive issue before the Tribunal was whether the applicant was a genuine temporary entrant as required by cl 500.212(a). The Tribunal identified that it must have regard to Ministerial Direction No. 69.
The Tribunal summarised the applicant’s travel history and his circumstances generally, including his study progression, employment, living costs, and economic and family connections to in his home country and Australia.
The Tribunal considered the applicant’s explanation for why he had not been enrolled from April 2020 and February 2021. Tribunal made some allowances for the health issues raised by the applicant, but it was not persuaded by his explanations.
The Tribunal considered the Graduate Diploma of Management the applicant indicated he was going to complete. It noted that he had abandoned that course and enrolled in a new course in construction. The Tribunal expressly noted and accepted that the applicant had completed three units in that course. Further, the Tribunal recorded the applicant gave evidence at the hearing that he had completed a further unit, he had almost finished a fifth unit, and he had seven units outstanding. The Tribunal accepted and commended the applicant on that progress, but it noted that the applicant had been onshore for five years and, during that time the applicant, had only successfully completed an English language course. The Tribunal put to the applicant at the hearing that this information suggested he might not be a genuine student. The Tribunal recorded the applicant’s evidence in reply, which was that his Master level courses had been too difficult and that the COVID-19 pandemic hit, and he was unable to study. The Tribunal also took into account evidence that the applicant had an appendectomy in February 2022 and had some health issues prior.
The Tribunal was not satisfied that the applicant satisfactorily explained why he had only completed one course in the five years. The Tribunal noted that the applicant had been working onshore in Australia but, at the same time, he had not been making satisfactory progress on his courses. The Tribunal found this was not the kind of progress it expected that a genuine student would have made. Noting that the evidence before it was the applicant had been employed in Australia since May 2019, the Tribunal found that this raised concern that he was using the student program to maintain his residence in Australia.
The Tribunal also found it concerning that the applicant had downgraded his courses from a bachelor to a diploma level course. Ultimately, however, the Tribunal accepted the applicant’s explanation for that change, and it accepted the applicant had enrolled in the Civil Construction Design course because of the advice and encouragement from his uncle, and because he believed opportunities in India would flow from that course.
Looking at the applicant’s life in Australia, the Tribunal observed that the applicant's wife was in Australia. It formed the view that the applicant had established strong ties to the Australian community whilst he had been onshore. It found these ties formed a strong incentive for the applicant to remain in Australia.
The Tribunal also looked at the applicant’s ties to India. It accepted that those ties were an incentive for him to return to India, but it was not satisfied that those ties were significant, in that they did not outweigh the applicant’s desire and incentive to remain onshore. It accepted the applicant had given a reasonable explanation for why he was studying in Australia.
The Tribunal also considered the applicant’s evidence of his annual income in Australia compared to his annual income in India. In doing so, the Tribunal found the applicant’s economic circumstances in Australia served as a significant incentive for him to remain.
The Tribunal found that the applicant’s PRISMS record supported the applicant’s claims regarding his study progress and enrolment in Australia. For that reason, the Tribunal gave no adverse weight to those records. Subsequently, the Tribunal evaluated its findings holistically and identified that it did have concerns about the length of time the applicant had been in Australia, along with his poor academic progress, and the fact that he had an economic incentive to remain in Australia.
It found that those matters outweighed the applicant’s incentives to return to India. In relation to his current enrolment in the course, and on the balance, it was not satisfied the applicant was a genuine applicant for stay as a student.
Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212. As such, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.
APPLICATION TO THIS COURT
The application for judicial review advanced 10 grounds of review.
The applicant also filed an affidavit in which he reiterated the same grounds of review as in his application and annexed the Tribunal’s decision. It was not necessary for the Court to take this affidavit into evidence as the Tribunal’s written reasons for decision were included in the Court Book.
The matter was listed for hearing on 26 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 11 July 2025.
Orders made by the Registrar provided for the applicant to file and serve, at least 28 days before the hearing, an amended application, written submissions and any additional evidence on which he sought to rely. The orders also provided for the Minister to file and serve, at least 14 days before the hearing, written submissions and any additional evidence they sought to rely upon. Neither the applicant nor the Minister filed anything within the period provided by the orders.
The day before the scheduled hearing the Minister filed their written submissions.
At the hearing on 26 August 2025, the applicant appeared in person and was assisted by an interpreter in the Gujarati and English languages. The Minister was represented by Ms A Wilford of Sparke Helmore Lawyers.
The Court Book filed by the Minister on 26 May 2025 was tendered into evidence and marked Exhibit CB.
The Minister sought leave to rely on their written submissions and explained that the delay in filing the submissions was due to an oversight by their firm. Ms Wilford apologised for the oversight and indicated that the Minister would agree to time sought by the applicant to consider the submissions. I discussed the matter with the applicant, he indicated that he received the submissions and had read them, though he did not fully understand them. He did not object to leave being granted for the Minister to rely on the written submissions, and leave was granted.
After discussion with the parties, I considered the best way to proceed was for Ms Wilford to explain the matters set out in the Minister’s written submissions in its entirety, which she helpfully did with the assistance of the interpreter, for the benefit of the applicant.
Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application, which he did.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].
Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
GROUNDS OF REVIEW
The grounds of review advanced in the application (without alteration) are:
1.My name is Savan Dilipkumar Patel, D.O.B – 05/11/1992. I am a citizen of India.
2.I applied for Subclass 500 Student Visa applied on 25th February 2021.
3.The Department of Home Affairs refused to approve the visa claiming in the decision record that the delegate of the Minister was not satisfied that clause cl. 500.212 of Schedule 2 to the Regulations.
4.The case officer further informed me in decision letter that he is not satisfied that I do not meet the Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student.
5.The Department of home Affairs refused the visa on 28th June 2022. After that I have made an appeal to Administrative Appeals Tribunal on 01-07-2022.
6.The Tribunal send me request for an information on 04-10-2023, I have provided all the requested information to AAT.
7.The Tribunal send me request for Hearing on 05-01-2024, I have attended the hearing and provided all information to AAT.
8.The administrative appeals Tribunal affirm the decision on 22-01-2024 and inform me on 23-01-2024.
9.The administrative appeals Tribunal did not take into consideration the evidence provided to the tribunal in relation to my application demonstrating that I meet the genuine temporary entrant requirement.
10.The administrative appeals Tribunal did not take into account the evidence that I have provided specifically that I was a genuine temporary entrant as I intend to leave Australia after my studies and wanted to improve my English along with getting a certified qualification.
Grounds one to eight
Grounds one to eight provide a background to the proceedings and do not give rise to any basis for contending jurisdictional error.
Accordingly, these grounds do not disclose jurisdictional error.
Grounds nine and ten
By grounds nine and ten, the applicant contends that the Tribunal failed to consider evidence in support of his claim to be a genuine temporary entrant, including his intention to leave Australia upon completion of his studies, his desire to obtain a qualification and to improve his English.
At the hearing, the applicant was invited to make oral submissions in support of these grounds. The applicant said he informed the Tribunal that he completed four subjects towards his Diploma of Civil Construction and that he had since completed that course. He said the reason he could not complete his studies earlier was because of COVID-19, since his whole family was sick and he was worried about them. He said he also had his own health issues. He complained that he had submitted documents to explain these circumstances, but the Tribunal failed to properly consider the evidence.
The Minister contends that the Tribunal expressly stated at [8] of its decision that it had regard to all the applicant’s submissions and evidence, both written and oral, in making its decision. The Minister contended that while the Tribunal had qualified that statement by saying it had only referred to specific evidence in its decision, where that evidence was fundamental or materially significant to its decision, no inference should be drawn from the mere assertions made by the applicant that the Tribunal failed to consider evidence or failed to have regard to submissions which had been expressly made or those clearly arising on the material before it: NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 (NABE).
It is well established that a failure to consider a claim (or relevant evidence) can give rise to jurisdictional error. The claim (or evidence), however, must have been squarely raised by the applicant or clearly emerge from the material that was before the Tribunal: NABE at [55] and [68] per Black CJ, French and Selway JJ.
It is also well established that consideration of a claim (or evidence) requires the decision maker to engage in an active intellectual process: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
The Tribunal’s decision discloses that it had regard to the matters raised by the applicant in support of his claim to be a genuine temporary entrant. As submitted by the Minister, the Tribunal expressly considered at [19], the applicant’s claim he wanted to obtain a qualification in civil construction, after which he would return to India to work in his uncle’s building business. The Tribunal accepted at [19], that the applicant’s course was relevant to, and would likely assist, the applicant’s career in the building industry. It cannot be said that the Tribunal failed to consider the applicant’s claim that he would return to his home country upon completion of his qualification.
As to the contention that the Tribunal failed to consider the applicant’s desire to improve his English, I accept the Minister’s submission that this claim (of wanting to improve his English) was not advanced by the applicant. The evidence that was before the Tribunal relevant to the study of English, which I am satisfied it considered, was that the applicant had enrolled in, and completed, a General Intensive English course: see [15]. In that regard, the Tribunal observed at [17] that while the applicant had applied himself to his studies since April 2023, it was concerned that prior to this time the only course he had completed onshore, during a period of five years, was the English course. I am satisfied that the Tribunal considered the claim and evidence, as it arose before it, regarding the applicant’s study of English. No obligation arose to consider the applicant’s desire to improve his English as this was not a claim squarely put to the Tribunal, nor can it be said that it clearly emerged from the evidence before it. This complaint is therefore not made out.
In respect of the applicant’s complaint that the Tribunal failed to consider that he had completed four units of his diploma, this is not made out. At [16] of its reasons, the Tribunal expressly considered the material before it which indicated that the applicant was enrolled in the Advanced Diploma in Civil Construction Design and had completed three units of that course. It also had regard to the applicant’s oral evidence that he had since completed one further unit, was almost finished a fifth unit, and only had seven units remaining.
As to the claims and evidence pertaining to the applicant and his family being sick during COVID-19, I am satisfied that these circumstances were also properly considered by the Tribunal. At [15], the Tribunal indicated that it had considered the applicant’s correspondence of 16 June 2021 in response to the Department’s natural justice letter and that it had made allowances for the health issues of the applicant and his family in India. The Tribunal noted at [15], that it had asked the applicant about his daily panic attacks (as claimed in his submission to the Department), but that he had indicated it was not panic attacks and that he had suffered stomach pains. The Tribunal also considered the evidence before it (at [17]) indicating the applicant suffered from appendicitis and had an appendectomy in February 2022 and had been prescribed medication for stomach issues. The Tribunal was not persuaded that the health issues of the applicant satisfactorily explained his failure to complete more than one English course onshore in the period of over five years.
Having considered the submissions and evidence before it, the Tribunal formed the view that while there were some incentives for the applicant to return to India, it was concerned that he was motivated by factors other than study and was using the program as a means of maintaining residence in Australia. The Tribunal was particularly concerned about the length of time the applicant had been onshore and his overall poor academic progress and economic incentive to remain. Consequently, it found that he did not satisfy cl 500.212.
The assessment of claims and weighing of evidence is entirely a matter for the Tribunal. I am unable to identify any irrational reasoning or legal unreasonableness in the Tribunal’s decision. Its findings were open to it on the evidence before it, and for the detailed reasons it gave.
Grounds nine and ten do not establish jurisdictional error.
CONCLUSION
As the grounds raised by the applicant do not establish jurisdictional error, the application for judicial review must be dismissed.
COSTS
The Minister sought an order that the applicant pay the Minister’s costs fixed in the sum of $6,500. No submissions of substance were made by the applicant on the issue of costs. I am satisfied that costs should follow the event and, having regard to the work undertaken and the scale costs for a standard migration matter, I am also satisfied that the amount sought in this matter is reasonable and will so order.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 9 September 2025
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